Editorial: Another blow struck against open justice

The lawyer representing a high-profile musician who committed an indecent act on a 16-year-old girl while drunk maintained that his client "should be entitled to be sentenced as most others in the community would". That might sound like a reasonable plea for equal treatment. Yet the upshot of this case has been the most unequal of outcomes. After the entertainer pleaded guilty in the Auckland District Court, Judge Eddie Paul let him off without conviction and permanently suppressed his name. Understandably, this has prompted outrage from the likes of Rape Prevention Education director Kim McGregor. It has also supplied another reason for the corroding of public confidence in the justice system.

Judge Paul ruled that the consequences of conviction and publicly naming the man would be out of proportion to the gravity of the offence, which he considered "medium to low-level". Naming and shaming would have a "significantly adverse effect" on the musician's international career and his record and ticket sales, he said. That may be so. People who appeal for name suppression because of their celebrity status have more to lose than the man in the street. But they must also recognise that they have traded privacy for the many benefits of public acclaim. Attention cannot be switched on and off as a celebrity wishes. He cannot become Everyman when the constant exposure that is a price of fame palls.

The judge might also have considered other consequences of extending favour, not least the rumour and suspicion aroused whenever name suppression is granted. People begin speculating about the offender, and, inevitably, fingers are pointed unfairly at others. Every high-profile male musician may now feel there is a slur against him. Rumour can never be a satisfactory substitute for public reporting.

Most fundamentally, Judge Paul has not heeded the Court of Appeal view that the starting point in matters of suppression must be the importance of open judicial proceedings and the right of the media to report them fairly and accurately as surrogates of the public. This view is meant to underline the fact that the court system is supposed to operate on the basis that the public has a powerful right to know what occurs in courtrooms.

All too often, judges, particularly in the lower courts, are willing to draw veils across the identities of people appearing before them. They require little cajoling to err on the side of secrecy. Despite the Appeal Court guideline, a culture of suppression unique to this country, and often remarked upon by visiting jurists, continues to pervade our courts.

Judges are meant to satisfy themselves that name suppression is "demonstrably justified" on the facts before them. Judge Paul noted the detrimental impact on the musician's career and said that while his act was not simply a "schoolboy's prank gone wrong", it was not the most serious of offences. Additionally, the entertainer was unlikely to reoffend. The 16-year-old victim, for her part, described the man's behaviour as "disgusting and wrong". The offence carried a maximum penalty of two years in prison. The man admitted the act. It is difficult to see a demonstrable justification for suppression.

Clearly, the treatment of the musician was nothing like that of anyone in the street. Judge Paul has been swayed unduly by the suggestion that publicity would destroy a career. He should have put more weight on the notion that fame and fortune entail social responsibilities. And, even more so, that open justice must prevail in all but truly exceptional circumstances.

In some cases, name suppression may be necessary, as with the victims of sex crimes. This, palpably, was not one of them.